Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Introduction to the Law of Succession 1.1 Succession 1.2 Technical terms 1.3 Property that wills or the intestacy rules cannot give away 1.3.1 Donatio mortis causa 1.3.2 Joint property 1.3.3 Life assurance policies and pension scheme benefits 1.3.4 Nominations 1.3.5 Trust interests and property held in a fiduciary capacity 1.4 Summary Chapter 2: The Mind of the Testator 2.1 Introduction 2.2 Capacity to make a will 2.2.1 Age 2.2.2 Mental competence 2.2.2.1 Making a will 2.2.2.2 The extent of their property 2.2.2.3 The moral claims on their generosity 2.2.3 Cases illustrating how mental competence has been assessed in practice 2.2.4 The lucid interval 2.2.5 Insane delusions 2.2.6 The time to apply the test 2.3 The burden of proof and presumptions relating to mental capacity 2.4 Precautions 2.5 Intention to make a will 2.6 Knowledge and approval 2.6.1 Time of knowledge and approval 2.6.2 Burden of proof suspicious circumstances 2.6.3 Blind or illiterate testators or the will signed on the testator s behalf 2.6.4 Precautions 2.7 Mistake 2.7.1 Mistake as to the whole will 2.7.2 Mistake as to the words used 2.7.3 Mistake by the testator as to part of the will 2.7.4 Mistake by a draftsman as to part of the will 2.7.5 The statutory power to rectify 2.7.6 Rectification in preference to other courses of action 2.8 Force, fear, fraud and undue influence 2.8.1 Force or fear 2.8.2 Fraud 2.8.3 Undue influence 2.8.4 Gifts to solicitors and members of their staff i
2.8.5 Gifts to chartered legal executives 2.9 Reform 2.10 Summary Chapter 3: Formalities for Making a Will 3.1 Introduction 3.2 Formalities in s9 Wills Act 1837 3.3 Writing and signature 3.3.1 Form and manner of the signature 3.3.2 The position of the signature 3.3.3 Will with more than one page 3.3.4 The envelope cases 3.3.5 Signature on the testator s behalf 3.3.6 The interpretation of s9(b) 3.4 Function of the witnesses 3.4.1 Meaning of acknowledged 3.4.2 Witnesses acknowledgment 3.4.2.1 Presence of witnesses 3.4.2.2 Knowledge required by the witnesses 3.5 Attestation clauses 3.6 The witness as beneficiary 3.7 Summary Chapter 4: Privileged Wills 4.1 Introduction 4.2 Soldier 4.2.1 Actual military service 4.2.2 Application of Re Wingham 4.3 Mariner 4.3.1 At sea 4.4 Testamentary intention 4.5 Revocation 4.6 Are privileged wills still needed? 4.7 Summary Chapter 5: Incorporation by Reference 5.1 Introduction 5.2 In existence at the date of execution of the will 5.3 Referred to as in existence at the date of the will 5.4 Clear identification of the document 5.5 The effect of incorporation 5.6 Summary Chapter 6: Revocation of Wills 6.1 Introduction 6.2 Express revocation 6.2.1 Lack of knowledge and approval 6.3 Revocation by implication 6.3.1 Failure of the revoking gift ii
6.3.2 Intention to revoke must be unambiguous 6.4 Revocation by destruction 6.4.1 The act of destruction 6.4.2 Intention 6.5 Presumption as to revocation 6.5.1 Proof of lost or destroyed wills 6.6 Dependent relative (conditional) revocation 6.7 Revocation by marriage and civil partnership 6.7.1 Wills made in expectation of marriage or civil partnership 6.7.2 Divorce, nullity and dissolution of a civil partnership 6.8 Summary Chapter 7: Mutual Wills 7.1 Introduction 7.2 The principle of the mutual will 7.2.1 The agreement 7.2.2 When does the trust arise? 7.2.3 What property does the trust affect? 7.2.4 What is the nature of the trust? 7.3 Criticisms of mutual wills 7.4 Summary Chapter 8: Alterations to Wills 8.1 Introduction 8.2 Alterations and obliterations 8.3 Alterations made before the execution of the will 8.4 Alterations and obliterations made after the execution of the will 8.5 Codicil republishing an altered will 8.6 Summary Chapter 9: Republication and Revival Chapter 10: Intestacy 9.1 Introduction 9.2 Republication 9.3 Revival 9.4 Summary 10.1 Introduction 10.2 Partial intestacies 10.3 The s33 statutory trust 10.4 Distribution on intestacy 10.4.1 The s46 order of entitlement 10.4.2 The s47 statutory trusts 10.4.3 Distribution if there is a surviving spouse or civil partner and no issue 10.4.4 The entitlement of the spouse/civil partner where there is issue 10.4.4.1 The family home 10.4.4.2 Personal chattels iii
10.4.5 Distribution on intestacy where there is no surviving spouse/ civil partner 10.4.6 Disclaimers and forfeiture 10.5 Legitimacy, illegitimacy, adoption 10.6 Intestacy rules deaths before 1 October 2014 10.7 Reform of the intestacy rules 10.8 Summary Chapter 11: Family Provision 11.1 Introduction 11.2 The nature of the right to bring an application 11.3 Domicile 11.4 Locus standi 11.4.1 s1(1)(a) the wife or husband or civil partner of the deceased 11.4.1.1 Polygamous marriages 11.4.1.2 s25(4) void marriages 11.4.1.3 Judicially separated spouses and separated civil partners 11.4.2 s1(1)(b) a former wife or former husband or former civil partner of the deceased who has not yet remarried or entered into a further civil partnership 11.4.2.1 s1(1)(ba) a person living in the same household as husband or wife or civil partner 11.4.3 s1(1)(c) a child of the deceased 11.4.4 s1(1)(d) a person treated as a child of the family 11.4.5 s1(1)(e) a person maintained by the deceased 11.4.5.1 Immediately before death 11.5 Reasonable financial provision 11.5.1 The objective test 11.5.2 The common guidelines 11.6 Particular guidelines: the spouse or civil partner standard 11.6.1 Former spouses who have not remarried 11.6.2 A person living in the same household as husband or wife 11.6.3 A child of the deceased 11.6.4 A child of the family 11.6.5 Any other person maintained by the deceased (s1(1)(e) applicants) 11.7 Legally unenforceable assurances 11.8 Time limit (s4) 11.9 The property available the meaning of net estate (s25(1)) 11.10 Anti-avoidance provisions (ss10 and 11) 11.10.1 Order for the donee to make financial provision (s10) 11.10.2 Power to modify deceased s contract for disposition (s11) 11.11 Court s power to make orders (s2) 11.12 Law reform 11.13 Summary Chapter 12: Legacies and Devises 12.1 Introduction 12.2 Specific legacies 12.3 General legacies 12.3.1 Interest on general legacies 12.4 Demonstrative legacies iv
12.5 Pecuniary legacies 12.6 Residuary legacies 12.7 Summary Chapter 13: The Failure of Gifts 13.1 Introduction 13.2 Ademption 13.2.1 Ademption and the option to purchase 13.2.2 Interpreting gifts (s24 Wills Act 1837) 13.3 Disclaimer 13.4 Lapse 13.4.1 Joint tenancy and tenancy in common gifts 13.4.2 Class gifts 13.4.3 s33 Wills Act 1837 13.4.4 The statutory presumption as to survivorship: commorientes 13.5 Forfeiture 13.5.1 Reform of the consequences of the law of forfeiture 13.6 Other reasons for the failure of gifts 13.6.1 Abatement 13.6.2 Beneficiary witnesses will 13.6.3 Uncertainty 13.7 Summary Chapter 14: Construction of Wills 14.1 Introduction 14.2 Two broad approaches to the construction of wills 14.3 The rules of construction 14.4 The meaning of words and phrases 14.5 The admission of extrinsic evidence 14.5.1 The general rule 14.5.2 s21 Administration of Justice Act 1982 14.6 Deciding if a gift is absolute or limited 14.6.1 s22 Administration of Justice Act 1982 14.6.2 The rule in Lassence v Tierney [1849] 14.7 Subsidiary principles of construction 14.8 Gifts by description to children and other relatives 14.8.1 Children whose parents were never married 14.8.2 Legitimated children 14.8.3 Adopted children 14.8.4 Same-sex marriages 14.8.5 Other related rules 14.9 Summary Chapter 15: Personal Representatives: Obtaining the Grant 15.1 Introduction 15.2 Executors 15.2.1 Appointment of a firm 15.2.2 Implied appointment of the executor 15.2.3 Passing over and substitution of executors 15.2.4 The number of executors 15.2.5 The persons who may be appointed as executors v
15.2.6 Chain of representation 15.2.7 Acceptance of office 15.2.8 Renunciation 15.3 Administrators 15.4 The executor de son tort 15.5 Small estates 15.6 Grants of probate and administration 15.7 Administration de bonis non administratis 15.8 Revocation of grants 15.8.1 Effect of revocation 15.9 Foreign grants 15.10 Summary Chapter 16: Personal Representatives: Powers and Duties 16.1 Introduction 16.2 Distinguishing executors and administrators 16.3 Duties of the personal representatives 16.3.1 Collection of assets 16.3.2 Payment of debts 16.3.2.1 The ascertainment of debts 16.3.3 Distribution of the estate 16.3.3.1 The ascertainment of beneficiaries 16.4 The powers of the personal representatives 16.4.1 General powers of administration 16.4.2 Investment 16.4.3 Appropriation 16.4.4 Insurance 16.4.5 Appointment of trustees of an infant s legacy 16.4.6 Maintenance 16.4.7 Advancement 16.4.8 Power to carry on a business 16.4.9 Remuneration 16.4.10 Delegation 16.5 Summary Chapter 17: The Administration of the Estate 17.1 Introduction 17.2 What assets should the personal representatives sell? 17.3 Problems with payment of debts 17.3.1 When is an estate insolvent? 17.3.2 When is a debt secured or unsecured? 17.4 The solvent estate 17.4.1 Secured debts 17.4.1.1 s35 Administration of Estates Act 1925 17.4.1.2 Contrary intention reversing the effect of s35 17.4.2 Unsecured debts 17.4.2.1 The statutory order 17.4.2.2 Practical applications of the statutory order 17.4.2.3 Contrary intention and alteration of the statutory order 17.4.2.4 Marshalling 17.5 The insolvent estate 17.5.1 Secured creditors vi
17.5.2 Unsecured creditors and the order in bankruptcy 17.5.3 Liability for not following the bankruptcy order 17.5.4 Insolvent estates and joint property 17.5.5 Some additional points regarding insolvent estates 17.6 Payment of legacies 17.6.1 Pre-1925 rules 17.6.2 Post-1925 rules undisposed-of property 17.6.3 Post-1925 rules where s33 Administration of Estates Act 1925 does not apply 17.7 Distribution of the assets 17.7.1 Ascertainment of the beneficiaries 17.7.2 The rights of the beneficiaries pending distribution 17.7.3 Assents 17.7.3.1 Assents to personalty 17.7.3.2 Assents to land 17.7.4 The power to set off legacies against debts 17.7.5 Bankrupt beneficiaries 17.7.6 The administration period 17.7.7 Personal representative or trustee? 17.8 Summary Chapter 18: Liability of the Personal Representatives 18.1 Introduction 18.2 Devastavit: breach of duty by a personal representative 18.3 Breach of trust 18.4 Duty to account 18.5 Administration by the court 18.6 Defences of personal representatives 18.7 Limitation of actions 18.8 Action against the recipient of assets 18.9 Summary Answers to Self-assessment Questions Index vii
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